Refuting more Historical Ignorance on Nullification

The website Human Events published an article by Jarret Stepman in which he attacks nullification advocates. In his article, “Secessionists and Nullifiers won’t Succeed,” Stepman agrees that citizens must resist federal power.

“There are far better options on the table, and more legal ways for citizens to resist the power of the federal government.”

However, Stepman says that nullification is not the answer.

“Although there is a great temptation for conservatives, in light of the most recent election, to attempt to nullify federal laws and even abandon the union, it must be noted that these actions are unproductive, unconstitutional, have led to the destruction of two national political parties and one bloody civil war.”

Stepman begins his argument with a history lecture. He correctly explains the Virginia and Kentucky Resolutions of 1798 as the origins of nullification, and points out that they were written by Thomas Jefferson, and James Madison, respectively.

“These resolutions were written in response to the Alien and Sedition Acts passed by Federalist dominated Congress and President John Adams…The resolutions, while fueling political movement that brought Thomas Jefferson and his followers to power, was outright rejected by ten states.”

While it is true that the Kentucky and Virginia Resolutions were rejected, the author fails to mention why. First off, the Alien And Sedition Acts gave the federal government the power to imprison anybody criticizing it. That certainly created a chilling effect on public debate. Furthermore, Stepman ignores the political realities of the time. The Federalist Party controlled most state legislatures. The Federalist party also controlled Congress and the presidency. So yes, these Federalist state legislatures failed to oppose a doctrine meant to void a policy their own party created and supported. Amazing!

But it gets better – and Stepman ignores this fact as well – these same states that rejected nullification of the Alien and Sedition Acts drug the doctrine out about 10 years later as a way to fight Jefferson’s blockade, and then again a few years later to block federal conscription during the War of 1812. Daniel Webster, whom Stepman uses as a citation in his opposition to nullification, wrote:

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”

Clearly, the opposition to Jefferson and Madison’s resolutions in 1798 was political, not principled.

Next, the article leads readers to the conclusion that James Madison opposed nullification later in his life. Stepman gives us a quote from Madison during the South Carolina Nullification Crisis.

“But it follows from no view of the subject, that a nullification of a law of the U.S. can, as is now contended, being rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.”

However, this shows another false contention. While these words did come from Madison in his Notes on Nullification, it was not the general principle of nullification he was opposing. Rather, Madison was opposing the process established by the South Carolina legislature, in which all other states must recognize the nullifying power of a single state, unless ¾ of the states voted against it.

That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide.

This is not the same nullification or interposition that Madison referred to in his Virginia Resolutions, and is clearly not the same as current nullification efforts. No current state is trying to achieve this objective. With the words, “as is now contended,” Madison is making the affirmation that no one geographical area has any power over the rest of the states.

But in the same Notes on Nullification, Madison reaffirmed a state’s authority to judge for itself when the feds go beyond their authority and to take action withing the borders of the state.

“She (Virginia in the 1798 Resolutions) asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.”

Madison was primarily concerned with preserving the Union at this point in his life. It is also important to note that he believed the tariff to be a bad policy, but not unconstitutional. While he rejected South Carolina’s nullification efforts during the tariff battle, and he made some statements that contradicted earlier contentions, (Madison was, in fact, a political creature too.) he never abandoned the basic principles he laid down in 1798. And Thomas Jefferson certainly didn’t either.

Finally, Stepman makes the statement that nullification “goes too far,” but says there are better ways to resist federal power. Ways such as the Health Care Freedom Act, for example, which states that, “No government entity can force an individual to participate in the healthcare system or stop an individual from purchasing treatment.”

The author continues to say that the “Governor can also refuse to set up health care exchanges in their states.” Apparently, Stepman believes that refusing federal laws is not nullification. However, no matter how you try to put it, that is exactly what it is.

Stepman is opposing nullification and advocating it, all at the same time. By rejecting nullification as legitimate resistance to federal power, yet supporting it in practice, Stepman makes you wonder if he even knows what nullification is.

Nullification is any act or set of acts which has as its end result a particular federal law being rendered null, void, or just plain unenforceable in your state. It flows from the basic principle that the federal government was created by an act of the people of sovereign states. In fact, several of the state ratifying instruments specifically assert that the states retain the power to reassume (i.e. take back) those powers. Take New York’s ratifying document for instance.

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers, or as inserted merely for greater caution.

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It logically follows that the people of the states retain the final say on the extent of the powers they have delegated. How can the people of the states have the authority to “reassume” powers if they don’t have the authority to judge the extent of the power in the first place? The people act through their elected representatives at the state level. So nullification stands as legitimate exercise of power within the structure of the system the framers created.

As Madison stated in his Report on the Virginia Resolutions, “The states then, being parties to the constitutional compact, and in their sovereign capacity it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

Stepman gives us a nice history lesson. And he does a fine job of pointing out historical opposition to nullification. But he fails to ever get to heart of the matter – the legitimacy of nullification within basic structure of the Union.